McGinnis v. Phillips, 205 P. 215

McGinnis v. Phillips

205 P. 215 | Mont. | 1922

MR. JUSTICE REYNOLDS

delivered the opinion of the court.

Plaintiff was injured in a collision between a motorcycle and an automobile upon the public highway, and brought this action to recover damages for his injuries. The ease was tried before a jury, which- rendered a verdict in favor of plaintiff for the sum of $5,075, and judgment followed. Motion for new trial was made and denied. Defendant has appealed from the judgment and the order.

The specifications of error raise questions as to the sufficiency of the complaint to state a cause of action, the sufficiency of the evidence to support the verdict, and the alleged excessiveness of the damages given by the jury under the influence of passion and prejudice.

*227The facts as disclosed by the complaint and plaintiff’s evidence were substantially as follows: Plaintiff was proceeding north on the west side of the public highway in the county of Fergus, riding on a motorcycle with side-car attached, occupied by one Turk. At the same time defendant was traveling toward the south upon the east side of the same highway in a Ford automobile. It is apparent, therefore, that each was traveling on the wrong, or his left, side of the road. Plaintiff was proceeding at a rate of speed - approximately twenty miles per hour and defendant at approximately fifteen miles per hour. The highway was a graded one, the graded portion being from twenty-five to thirty-five feet in width, with a well-beaten track on each side of the center thereof. The road was level and free from obstruction, so that each could see the 'approach of the other. When approximately 250 feet from defendant, plaintiff crossed to the east or his right side of the road, but defendant failed to cross to the west or his right side of the road. When a collision seemed imminent, plaintiff turned still farther to the right, and went as far in that direction as it was possible for him to go, striking the right bank of the graded portion of the highway, which bank was approximately three feet in height. Defendant, instead of turning to his right, turned to his left. In the collision the left wheel of the automobile struck the front wheel of the motorcycle, and the right front wheel of the automobile struck the rear wheel of the motorcycle. The axle of the automobile struck plaintiff’s left foot and leg, crushing the bones of his foot and breaking 'both bones of his leg about two or three inches above the ankle.

The law governing traffic upon the highway is fixed by statute, and reads as follows: “Traffic must everywhere and at all times keep to the right. Vehicles moving in opposite directions must pass each other by turning to the right. Vehicles moving in the same direction must pass by turning to the left on the part of the one passing and turning to the right on the part of the one being passed. At all times, curves, corners *228and crossings, and particularly where the view is in any manner obstructed both in cities and towns and in the country, vehicles must slow down and be under complete control and must keep to the right, so that if the width of the road permits, there is room on their left for the passing vehicle that may at any time suddenly or unexpectedly appear.” (Subdivision (a), sec. 8, Chap. 75, Laws 1917.)

Defendant urges that the complaint is defective for three [1-4] reasons: (1) That it fails to show that defendant knew, or in the exercise of reasonable care should have known, of plaintiff’s approach in time to have turned to the right in passing him; (2) that the complaint fails to show that plaintiff was free from contributory negligence; and (3) that the complaint fails to show that plaintiff turned from his left to his right side of the road seasonably and as soon as an ordinarily prudent person would have done.

The complaint alleges: “That plaintiff drove to his extreme right side of the road while fully 250 feet away from the defendant, but that the defendant did not drive to his right side of the road, but continued on toward the plaintiff without making any attempt whatever'to drive to his [the defendant’s] right side of the road as he should have done; that as the result of defendant’s negligence, wrong, default, carelessness, and want of due care, he drove his said automobile directly into the plaintiff and his motorcycle.”

In view of the fact that the statute expressly provides that “vehicles moving in opposite directions must pass each other by turning to the right, ’ ’ and that ‘ ‘ at all times * * * vehicles # * * must keep to the right so that if the width of the road permits there is room on their left for the passing vehicle that may at any time suddenly or unexpectedly appear,” the allegation that defendant was pn the left side of the road when they met makes a prima facie charge of negligence. While it may be true that one may be driving upon the left side of the road under certain circumstances without being guilty of negligence, yet in any particular ease such circumstances are *229matters of justification and of defense, and do not need to be negatived by the plaintiff in charging the violation of the statute. While the complaint does not specifically allege that plaintiff turned from his left to his right side of the road seasonably and at such time as an ordinarily prudent person should have done, yet it does allege that he made that turn when fully 250 feet distant from the defendant. An allegation that plaintiff turned out seasonably and as an ordinarily prudent person would have done would be merely the statement of a conclusion, and would not aid the court in determining whether or not the facts showed such turnout was seasonable. Whether or not it was seasonable is a question upon which reasonable men may easily differ, and therefore the court cannot say as a matter of law that the allégations' of the complaint were insufficient in this respect, but the mat-j ter resolves itself into a question of fact to be determined by the jury under the cireumstafices of the ease.

Any claim by defendant of contributory negligence on the. part of plaintiff was a matter of defense, and plaintiff did not1 need to allege freedom from contributory negligence in his1 complaint. (Vasby v. United States Gypsum Co., 46 Mont. 411, 128 Pac. 606; Ball v. Gussenhoven, 29 Mont. 321, 74 Pac. 871; Meehan v. Great Northern Ry. Co., 43 Mont. 72, 114 Pac. 781; Stewart v. Pittsburg etc. Copper Co., 42 Mont. 200, 111 Pac. 723.)

Contention is made that the evidence is insufficient to sus-! tain the verdict for the reason that it does not appear that plaintiff himself turned out seasonably, that he was driving in a careful and prudent manner, and that plaintiff’s own act' was the proximate cause of the injury. From the evidence in' the case we are satisfied that all these questions were questions of fact to be resolved by the jury whose verdict upon those features of the case is controlling. j

Defendant urges that the amount awarded is excessive, and [5] indicates that the verdict was given under the influence of passion and prejudice, and that the judgment should not be *230sustained. The evidence shows that plaintiff suffered a com-minuted fracture of both bones of the leg just above the ankle. One piece of the large bone was broken loose, and there were several small fragments. Both legs were scratched and cut considerably. The arch of the left foot was crushed down, and the bones dislocated with laceration of the soft parts. The foot was restored to a good condition, and the bones of the leg united so that plaintiff has a serviceable leg, but it will not be as good as before the accident. There is slight deformity due to a callous formation where the bones united, and plaintiff retains a slight limp. Under these circumstances we do not think that the amount of the judgment can be said to be excessive.

Rehearing denied March 6, 1922.

For the reasons herein given, the judgment and the order denying motion for new trial are affirmed.

Affirmed.

Mr. Chief Justice Brantly and Associate Justices Cooper, Holloway and Galen concur.